DOMA under assault but still potent

NEW YORK — These are frustrating, tantalizing days for many of the same-sex couples who seized the chance to marry in recent years.

The law that prohibits federal recognition of their unions in under assault in the courts. The Obama administration has repudiated it and taken piecemeal steps to weaken its effects.

Yet for now, the Defense of Marriage Act remains very much in force — provoking anger, impatience and confusion among gay couples.

Because of DOMA, some binational couples still worry about deportation of the non-citizen spouse. Survivor benefits aren’t granted after one spouse dies. And couples filing joint tax returns in the states allowing same-sex marriage must still file separately this month with the IRS.

Said Brian Sheerin, who wed his partner six years ago in Massachusetts, “There are times I feel like a third-class citizen.”

When DOMA was passed overwhelmingly by Congress in 1996, and signed by President Bill Clinton, it was a pre-emptive strike. There were no legally married same-sex couples in the United States.

Since 2004, however, thousands of gays and lesbians have married as Massachusetts, Vermont, Connecticut, New Hampshire, Iowa and the District of Columbia legalized same-sex unions. Many others have wed in foreign countries.

“What was once theoretical now has practical effects that people can see, that can’t be explained other than as discrimination,” said Jon Davidson, legal director of the gay-rights group Lambda Legal. “There are people who’ve been married six years who are increasingly getting impatient.”

The controversy around DOMA creates an emotional rollercoaster for same-sex couples.

Last July, for example, many of them rejoiced when a federal judge in Massachusetts ruled that the act was an unconstitutional infringement on equality for same-sex couples.

There was more elation in February, when President Barack Obama ordered his administration to stop defending the law in the still-pending Massachusetts case and several other lawsuits. Yet no one knows when these cases will finally be resolved.

Last month, there was a flurry of excitement among binational gay couples when a U.S. Citizenship and Immigration Services spokesman indicated that cases would be “held in abeyance” while broader legal issues were reviewed. Hopes soared that this would mean a halt in deportations of foreigners married to gay Americans, but within two days the federal agency said there would be no policy change.

“It’s gut-wrenching to go through the ups and downs,” said Doug Gentry, whose Venezuelan spouse, Alex Benshimol, faces a deportation hearing in July.

They briefly hoped the case would be put on hold — but now have been notified that an application for permanent residency for Benshimol has been denied.

“I’ve had the rug pulled out from under me so many times,” Gentry said. “You’re so used to getting your hopes up, only to get them dashed, that you almost don’t want to hope.”

The couple, who married last year in Connecticut after six years as partners, run a pet grooming business in Palm Springs, Calif.

“I don’t feel we’re different from any other family,” said Gentry, 53. “I don’t want to be forced to stay with my husband by going into exile, and leaving my home, my business and my country behind.”

DOMA also complicates life for U.S. citizen Edwin Blesch and his South African husband, Tim Smulian, who married in Cape Town in 2007.

Unlike some gay binational couples, in which the foreigner overstays a visa, Smulian has abided by the terms of tourist visas which limit him to six months annually in the U.S. That means that to be together, the two retirees must uproot themselves from their comfortable home on the northeast tip of Long Island and spend half the year abroad.

“It’s a great personal, financial and medical inconvenience,” said Blesch, 70, who has had past health problems, faces surgery this spring and relies on the care that Smulian provides him.

Both men believe DOMA is doomed to be struck down by the courts or repealed by Congress, but Blesch says the endgame could take years.

“It will be a long process,” he said. “I might be sitting in a rocking chair in a nursing home by then — or dead.”

For men and women whose same-sex spouse has died, DOMA can prevent the payment of Social Security or Veterans Administration survivor benefits that would be paid out to heterosexual widows and widowers.

In California, 77-year-old Ron Wallen worries that he might be unable to afford staying in the home near Palm Springs that he and his partner of 58 years, Tom Carrollo, had shared before Carrollo’s death in March.

The two men married in June 2008, during a brief window where same-sex marriage was legal in California. But now DOMA prevents Wallen from receiving Carrollo’s Social Security survivor benefits, and he’s living only on his own $900-a-month Social Security check — about half of what Carrollo had been receiving.

“It would seem to smack the constitution in the face,” Wallen said of DOMA. “It hurts like hell.”

In Cheshire, Conn., retired school teacher Andrew Sorbo is in similar straits. His husband, Colin Atterbury, who died in May 2009, had been a federal employee at a nearby veteran’s hospital, and DOMA prevents Sorbo from receiving his VA pension.

The two men had entered into a civil union in Vermont in 2004, then married in Connecticut in January 2009 as Atterbury became ill with pancreatic cancer.

“80 percent of our household income disappeared when he died,” said Sorbo, 64. “It’s a betrayal of the ideals I used to teach my students … I know there isn’t justice for all.”

Though Connecticut is a relatively liberal state — with same-sex marriage now causing little controversy — Sorbo said many people he encounters are unfamiliar with DOMA.

“They have no idea how gay people are not getting the same rights they are,” he said. “It passes them by.”

He expects DOMA to be overturned eventually in court. “But they’ll never make it retroactive,” he said. “So for me it’s too late.”

Brian Sheerin says DOMA cost him and his husband, Ken Weissenberg, tens of thousands of dollars in extra taxes when they sold a home four years ago in order to move to Bedford, N.Y. A heterosexual married couple would have been able pocket $500,000 of the sale price before capital gains taxes kicked in, he said, but they were listed as “single” and taxed on proceeds over $250,000.

“That still sticks in my craw,” said Sheerin, 51, who married Weissenberg in Massachusetts in 2005.

He recalled returning with their two adopted daughters from a family vacation in Mexico to encounter a U.S. immigration officer who wanted Sheerin and Weissenberg to go through the entry point separately. The officer eventually relented, but the elder daughter took note.

“She asked, `Why did they do that?”’ Sheerin recalled.

DOMA’s future is uncertain. Democrats in Congress have introduced legislation to repeal it, but that effort is considered a long-shot while Republicans control the House. The pending court challenges could lead eventually to a Supreme Court decision on DOMA’s constitutionality — but that process, if it happens at all, could take several years.

DOMA’s foes are heartened by several recent opinion polls showing, for the first time, that more than half of Americans are ready to accept legal same-sex marriage. They hope this shift will reinforce the legal arguments against DOMA — notably that it creates an unwarranted exception to the historical federal policy of recognizing marriages of couples legally wed in the states.

“This exception denies thousands of legally married couples and their families the critical safety net that only marriage brings,” says Evan Wolfson, president of Freedom to Marry. “Perhaps worst of all, this is discrimination by the government itself, hurting families without helping anyone.”

One question is how DOMA will be defended in the pending court cases.

With the Obama administration now refusing to perform that task, the GOP leadership in the House says it will intervene to defend DOMA in court, but details remain sketchy. The Human Rights Campaign, a leading gay-rights group, has written to 200 of the country’s top law firms urging them not to take up the case on behalf of the House.

Joe Kapp, a Washington-based financial planner, said the uncertain status of DOMA has added to the challenges of advising his large gay clientele.

“The changes taking place are exciting, but there’s a lot of flux, and conflicting ways in which the administration is looking at relationships,” he said. “For now, couples probably should continue to assume that they will be recognized as strangers in the eyes of the law.”

Some activists are urging a more confrontational approach. A “Refuse to Lie” petition has been circulating on the Internet — promoted by various gay-rights groups — encouraging married gay couples to file joint federal tax returns in defiance of DOMA.

“The federal government’s refusal to recognize our marriages is blatant discrimination and we will not play along by lying on our tax returns and pretending we are single,” the petition says. “The government has chosen to discriminate and we choose to expose their bigotry by refusing to lie.”

At the bottom of the declaration is a disclaimer suggesting those who join the campaign consult an attorney for legal advice.

At least a half-dozen legal challenges of DOMA are pending, and the advocacy group Immigration Equality is laying the groundwork for an additional lawsuit focused on the plight of binational couples.

“I recently applauded the president’s decision to order his Justice Department to stop defending DOMA in federal court,” said Rep. Jackie Speier, D-Calif. “In that same spirit, he should now order his Homeland Security Department to halt all deportations until we find the courage to kill this unconstitutional law.”

The administration already has taken some steps to ease DOMA’s impact, such as requiring executive branch agencies to extend benefits to same-sex domestic partners of federal employees.

On April 1, the Department of Health and Human Services advised states that they can henceforth treat gay couples — whether married or in domestic partnerships — similarly to straight couples with respect to benefit programs. For example, Medicaid has exemptions to avoid forcing a healthy spouse to give up the family home and retirement savings in order to qualify a spouse for long-term care; that protection will now be permissible for sex-same as well as heterosexual couples.

The incremental moves have been welcomed by activists, but don’t prevent impatience.

Said Jon Davidson, “Now that even the administration admits DOMA is unconstitutional, that has people wondering why it’s still there.”